Citation Nr: 1309363
Decision Date: 03/19/13 Archive Date: 04/01/13
DOCKET NO. 07-03 663 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California
THE ISSUES
1. Entitlement to service connection for a back disability.
2. Entitlement to service connection for a bilateral hearing loss disability.
3. Entitlement to service connection for tinnitus.
REPRESENTATION
Appellant represented by: California Department of Veterans Affairs
ATTORNEY FOR THE BOARD
M. Taylor, Counsel
INTRODUCTION
The Veteran, who is the appellant, served on active duty from July 1974 to August 1976. He also served in the Army Reserve from August 1976 to November 1996.
This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in June 2006 of a Department of Veterans Affairs (VA) Regional Office (RO).
In January 2011 and in March 2012, the Board remanded the claims for additional development. In the remand in January 2011, the Board sought verification of the Veteran's periods of active duty for training. After the supplemental statement of the case was issued in September 2011, additional evidence was received, including a chronological statement of Army Reserve retirements points, showing active duty for training points in each year from 1976 to 1993, but the exact dates of active duty for training were not shown.
In the remand in March 2012, the Board again directed that the dates for active duty for training be verified. VA received from the Defense Finance and Accounting Service, the Leave and Earning Statements from 1974 to 1993. While the records are relevant, the dates for active duty for training remain elusive. And the evidence pertaining to the claims of service connection for bilateral hearing loss and for tinnitus is insufficient to decide the claims.
As further development is needed, the claims are REMANDED to the RO via the Appeals Management Center in Washington, DC.
REMAND
The Veteran contends that his low back disability, hearing loss, and tinnitus began during a period of active service while in the Army Reserve.
On the claims of service connection, as the periods of active duty for training are pertinent to the claims, and as VA will make as many requests as are necessary to obtain relevant records from a Federal department unless VA concludes that the records sought do not exist or that further efforts to obtain the records would be futile, further development under the duty to assist is needed.
In addition to the inconclusive dates of active service, the medical evidence is insufficient to decide the claim of service connection for a low back disability and further development under the duty to assist is needed.
On the claims for service connection for bilateral hearing loss and for tinnitus, the Veteran's military occupational specialty was armor crewman. On entrance examination for active duty in July 1974 an audiogram showed a 45 decibel loss at 1000 Hertz and 4000 Hertz in the right ear and 40 decibel loss at 1000 Hertz in the left ear. In January 2007, a private audiologist stated that the Veteran's hearing loss was due to noise exposure during service from 1976 to 1995. As the evidence is insufficient to decide the claims, further development under the duty to assist is needed.
Accordingly, the case is REMANDED for the following action:
1. Request from appropriate custodian at the Department of Army for the Army Reserve Component, copies of orders authorizing the Veteran's periods of active duty for training from 1976 to 1993.
If the records do not exist or further efforts to obtain the records would be futile, notify the Veteran in accordance with 38 C.F.R. § 3.159(e).
2. Afford the Veteran a VA examination to determine:
Whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability approximately 50 percent), or less likely than not (probability less than 50 percent) that the current low back disability, degenerative disc disease and arthritis of the lumbar spine, is related to an injury, disease, or event during a period of active duty for training from 1976 to 1996.
The record shows that in March 1990 chronic low back pain due to spondylolisthesis was noted and it was recommended that the Veteran not do heavy lifting and straining. In June 1995, the Veteran gave a history of recurrent back pain and chronic lumbosacral muscle strain was noted. In February 1997, the Veteran had a laminectomy at L5. In October 1998 the Veteran sprained his back at work. In November 1998, X-rays showed degenerative disc disease and arthritis of the lumbar spine.
The Veteran's file must be made available to the VA examiner for review.
3. Afford the Veteran a VA audiology examination to determine:
Whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability approximately 50 percent), or less likely than not (probability less than 50 percent) that the current hearing loss or tinnitus or both are related to noise exposure in active service.
The record shows that Veteran's military occupational specialty was armor crewman. On entrance examination for active duty in July 1974, an audiogram showed a 45 decibel loss at 1000 Hertz and 4000 Hertz in the right ear and 40 decibel loss at 1000 Hertz in the left ear. And in January 2007, a private audiologist stated that the Veteran's hearing loss was due to noise exposure during service from 1976 to 1995.
The Veteran's file must be made available to the VA examiner for review.
4. After the development has been completed, adjudicate the claims. If any benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board.
The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
The claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112.
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George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).